On September
23, 2005, the Federal Communications Commission (FCC) released a First Report and Order applying the Communications Assistance for Law Enforcement Act (CALEA) to interconnected VoIP providers. Interconnected
VoIP providers must be in compliance with CALEA’s obligations within 18 months of the effective date of the new ruling,
or by the Spring of 2007.
Background
Enacted
in October 1994, CALEA was intended to preserve the ability of law enforcement agencies to conduct electronic surveillance
by requiring that "telecommunications carriers" and manufacturers of such equipment modify and design their equipment, facilities,
and services to ensure that they have the required surveillance capabilities. Section 103 of CALEA imposes specific
obligations on "telecommunications carriers" (as defined under CALEA) for assisting law enforcement, including with respect
to 1) call intercept; 2) accessing call identifying information; 3) delivering intercepted communications and call identifying
information to the government; and 4) doing so with a minimum of interference to subscriber service and privacy. The
FCC has acknowledged the importance of electronic surveillance in law enforcement's effort to fight terrorism and crime.
For more information see: http://www.intelecard.com/legalreg/03legalregs.asp?A_ID=449.
“Telecommunications
Carrier” Under CALEA
In its
VoIP CALEA Order, the FCC affirms its tentative conclusion that the definition of “telecommunications carrier”
under CALEA is more inclusive than the definition of the same term in the Communications Act of 1934 (Communications Act).
CALEA is different because, under a concept known as the “Substantial Replacement Provision (SRP)”, some information
services can be treated as telecommunications services if the service replaces a substantial portion of the local telephone
exchange.
Under
the SRP in CALEA, entities falling under the definition of “information service” under the Communications Act
would be considered “telecommunications carriers” for purposes of CALEA if the entity meets the three components
of the SRP. The three components are: 1) the entity must engage in providing wire or electronic communication switching
or transmission service; 2) the FCC must find that such service is a replacement for a substantial portion of the local telephone
exchange; and 3) the FCC must find that it is in the public interest to deem such entity a telecommunications carrier for
purposes of CALEA.
CALEA
Extended to Interconnected VoIP
The FCC’s
VoIP CALEA Order concludes that CALEA applies to interconnected VoIP providers. Interconnected VoIP services
are those VoIP services that: 1) enable real-time, two-way voice communications; 2) require a broadband connection; 3) require
IP-compatible customer equipment; and 4) permit subscribers to receive calls from and initiate calls over the PSTN.
The ruling applies to all VoIP communications that offer such capabilities, not only those that actually involve the PSTN.
The ruling
applies the three components of the SRP test to interconnected VoIP providers and finds that such providers are “telecommunications
carriers” for purposes of CALEA.
Switching
or Transmission: The FCC finds the term “switching”
in the SRP to include “routers, softswitches, and other equipment that may provide addressing and intelligence functions
for packet-based communications to manage and direct the communications along to their intended destinations.”
Interconnected VoIP providers use those technologies, and therefore engage in providing wire or electronic communication switching
or transmission service.
Substantial
Replacement: The ruling determines that interconnected
VoIP providers replace a substantial portion of the local telephone exchange service, namely the voice function of the traditional
local telephone exchange. Interconnected VoIP service essentially is a substitute for conventional telephone service.
Public
Interest: According to the FCC’s ruling,
it would be in the public interest to apply CALEA to interconnected VoIP providers because: 1) the decision will not have
a harmful effect on competition since all interconnected VoIP providers are covered; 2) the decision will not discourage the
development of new technologies and services because there has been no such discouragement since the FCC announced its tentative
conclusion in the VoIP CALEA rulemaking; and 3) protection of national security and public safety compels application of CALEA
to these services.
Issues
for Next Order
The VoIP
CALEA Order only establishes which entities are subject to CALEA. The VoIP CALEA rulemaking raised other
issues, including: 1) the ability of VoIP providers to provide all of the capabilities required by CALEA; 2) identification
of future services and entities subject to CALEA; 3) compliance extensions; 4) cost recovery; and 5) enforcement. These
issues will be addressed in a future FCC order to be released in the coming months.
Effective
Dates
Interconnected
VoIP providers must be in full compliance with CALEA requirements within eighteen months of publication of the VoIP CALEA
Order in the Federal Register.
The FCC’s
VoIP CALEA Order is the first step towards applying CALEA to VoIP services. Interconnected VoIP providers must
be prepared, within eighteen months, to fully comply with the requirements of Section 103 of CALEA. Although the precise
requirements and capabilities that they will be required to provide have yet to be defined, such providers should be aware
of CALEA’s requirements and take them into consideration when planning and designing their systems.
October
2005
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